To The Friends 


7 se ce 
THE AMERICAN MERCURY 


cA Statement by the 
EDITOR 


To the Friends of 
THE AMERICAN MERCURY 


In the September, 1925, issue of THz American Mercury there 
appeared an article entitled ‘‘Keeping the Puritans Pure,’’ by Mr. 
A. L. S. Wood, of the Springfield Union, a well-known New England 
journalist. It was, in substance, an exposure and denunciation of the 
method employed by the Watch and Ward Society, of Boston, and 
its agent, the Rev. J. Frank Chase, in censoring books and magazines 
in Massachusetts, and, indirectly, throughout New England—a cry- 
ing abuse, long known to every American publisher. It was pointed 
out that Mr. Chase proceeded, not by bringing the publisher into 
court, confronting him with a detailed accusation and giving him a 
chance to defend himself, but by circulating threats among news- 
dealers and. book-sellers. The effect of this system, it was argued, 
was to destroy the publisher’s property and assail his good name 
without giving him his day in court, or any chance to recover dam- 
ages for false accusations. When a news-dealer resisted Chase’s 
threats, he was arrested, and as a rule the possibility of incurring a 
prison sentence for an act in which he had no personal interest and 
from which his private profit was small, induced him to plead guilty 
and accept a small fine. In case he refused to do so, it was easy, by 
raising a public outcry against him, to convict him. Thus the pub- 
lisher, having had no chance to appear in court and defend himself, 
found himself confronted by a judgment that his book or magazine 
violated the law. 

Mr. Wood exposed this vicious and extra-legal system and Tur 
American Mercury followed by denouncing it. At once reports 
reached us that there would be reprisals. They followed on the ap- 
pearance of the April, 1926, issue. On March 30 the newspapers re- 
ported that Chase had warned the magazine distributors of Boston 
to withdraw that number. The next day they reported that a dealer 
at Harvard Square, Cambridge, Felix Caragianes by name, had been 
arrested at Chase's orders for disregarding the warning. No notice 
of these proceedings was served on THe American Mercury. We 
first heard of them through the New York newspapers. A few days 
later we were notified by the Boston distributors that, in response 
to Chase’s threat, they had withdrawn the magazine, and held a 
large number of unsold copies at our order. 

On April 5, still lacking any notice of the proceedings from Chase 
and being quite unaware what part of the contents of the April num- 
ber he objected to, I went to Boston, demanded that Chase meet me 
on the Common, and there forced him to buy from me a copy of the 


“W502 t 

issue in question. He sought to evade this meeting, but my counsel, 
Arthur Garfield Hays and Herbert B. Ehrmann, insisted that he 
come. At his order I was arrested, charged with violating the Massa- 
chusetts statute forbidding the sale of obscene literature. The police, 
at his suggestion, tried to delay the trial for a week, but I insisted 
upon being heard at once, and was tried the next day, April 6, before 
Judge James P. Parmenter, in the Municipal Court. On April 7, Judge 
Parmenter dismissed the charge, holding that the April number in 
no wise violated the law. His opinion is printed hereunto as Ap- 
pendix I. 

Meanwhile, Mr. Hays had filed a bill in the Federal District Court 
at Boston, praying for an injunction forbidding Chase to molest the 
magazine further. This bill raised the whole question of the right of 
an irresponsible society, through its agents, to attack the property 
and good name of the publishers by means of threats and intimida- 
tions, without giving them their constitutional right to meet their 
accusers in open court. On April 14 Judge James M. Morton, Jr., 
granted the injunction as prayed. It is printed hereunto as Appendix 
Il. The case against Caragianes had been continued from March 31 
at Cambridge. Before and after my acquittal certain Boston news- 
papers, friendly to the Watch and Ward Society and its methods, 
printed inflammatory stuff against us, obviously designed to arouse 
prejudice. On April 12 the judge at Cambridge held Caragianes to be 
guilty, and imposed the minimum fine. This case has been appealed. 
Its issue obviously conflicts with the anterior decision of Judge 
Parmenter. 

On or about April 6, the day before my acquittal, news reached us 
that efforts were being made to induce the Postoflice Department to 
bar the April issue from the mails. A copy of this issue had been sub- 
mitted to the Postmaster at Camden, N. J., where we print, on or 
about March 15, and the number had been passed. The whole edition 
had been mailed and delivered before April 5—-all save a few copies 
held for stock. The question of the mailability of the number was 
thus purely academic. Notwithstanding this fact, and my acquittal at 
Boston, the Postmaster at New York was induced to submit it to 
the Solicitor to the Postoffice, and on April 8 we were informed by 
the Associated Press that the issue had been barred from the mails 
ex post facto. We received no notice of this action, and were not offered 
a chance to defend the magazine. We at once demanded a hearing 
before the Solicitor, and he set it for April 15 in Washington. Mr. 
Hays, Mr. Knopf and I appeared before him and his two assistants 
on that day, and made a vigorous protest, not only against the 
formal barring of the magazine, but also against the fact that we 
had not been notified of it and had been given no chance to present 


a defense. In case the action is not rescinded, we shall apply for a 
review of the whole proceedings by a Federal Court. 

In brief, our case is this: we protested against the attack upon our 
property in Boston by an irresponsible and obviously vengeful man, 
demanded our day in court, got it, and were held to be guiltless by 
the trial judge. We then took our protest to the Federal Court, asked 
for an injunction forbidding such high-handed and unfair proceed- 
ings hereafter, and got what we asked for. We now proceed to chal- 
lenge the Postoffice’s trial and condemnation of us in camera, with- 
out notice to us or any chance to confront either the charges or our 
accusers. We shall, as the case unfolds, challenge and contest every 
other effort to dispose of us, and shall seek our lawful remedy and 
compensation in the courts for the damage inflicted upon us. We 
believe and contend that such efforts are inspired by persons who 
object to the general editorial policy of the magazine, and especially 
to its diligent and vigorous opposition to official and ecclesiastical — 
tyranny, and that the allegation that it is salacious is obviously dis- 
ingenuous and without merit. 

We have made absolutely no effort to capitalize the publicity that 
has flowed out of our contest. We might have printed and sold a 
great many extra copies of the April issue; we have not printed one. 
Our print order for May is not above the normal. We have suffered 
damage in good will by the reckless and unwarranted charges levelled 
at the magazine, and we have been put to heavy expense by our liti- 
gation on three fronts. We know our friends will have no doubt of 
our bona fides. This circular is issued in response to countless requests 
for a statement of the issues and our plans. 

H. L. Mencken, 
Editor. 


An injunetion against the Postmaster 
General, restoring the April issue to the 
mails, was issued by Judge Mack in the 
Federal District Court at New York 
May ll, —___ | 


ee ee 


UNIVERSITY OF ILLINOIS 
LIBRARY. 


Appendix I 


COMMONWEALTH OF MASSACHUSETTS 


SUFFOLK, Ss. ) | MUNICIPAL COURT OF 
THE CITY OF BOSTON 
COMMONWEALTH 
VS. 
MENCKEN 


OPINION OF JUSTICE JAMES P. PARMENTER 


In this case I believe we can eliminate a number of questions. The 
first inquiry is whether the language used in the article complained 
of is obscene, indecent or impure. This is plainly not the case and is 
not claimed to be so. The article is written in a literary style with 
somewhat of a light touch. There are no detailed descriptions or sug- 
gestions likely to excite the imagination of the reader, nor is a life 
of prostitution so described as to make it attractive to anyone. Quite 
the contrary is true. | cannot imagine anyone reading the article in 
question and finding himself or herself attracted toward vice. 

We then come to the question whether the subject presented as is 
here done, is indecent within the meaning of the statute. The ques- 
tion of the indecency of a writing often depends upon the circum- 
stances under which it is circulated. On this matter we are guided by 
the decision in Commonwealth vs. Buckley 200 Mass. 346, which is 
a leading case in this jurisdiction. There is much force in the illustra- 
tion used in the decision of any artist copying from the nude in his 
studio and his calling in the general public to observe his model. 
It by no means follows that the crowd would be moved by the same 
esthetic principles as the artist. | 

So again a paper on the customs of primitive races might properly 
be read before a learned society and printed in their transactions 
which would be quite unfit for general circulation. The article in 
question was printed in THz American Mercury which appears to be 
a Magazine appealing to persons interested in the discussion of serious 
subjects. There is nothing in its appearance or make-up which would 
suggest that it is anything but a serious magazine. It sells at a fairly 
high price and I can see no reason why a young person would be 
likely to purchase it. The article in question is only one of many 
features, none of which, except as I make mention, deals with mat- 
ters touching sex, and there is nothing in these articles which would 
appeal to an immature mind. On looking over the table of contents 
I find that there is nothing which would attract the attention of 
young people or which would indicate that the magazine is anything 
but a serious literary product. This magazine is quite different from 
the cheaper publications one sees on the news-stands. I cannot believe 
that this article would be at all likely to have an injurious effect upon 
its readers. 

My attention was also called to an article called ‘‘Clinical Notes’’ 
in the same issue of Ton American Mercury. It was not seriously 
urged that this article violated the statute. The gist of this article is 


s 


merely that sex is not nearly so important a matter in life as it is 
often assumed to be. 

Viewing the matter, then, from every phase including the language 
used, the nature of the article and its effect on the reader, and the 
general make-up of the magazine and its distribution, I find that no 
offense has been committed and therefore dismiss the complaint. 


Appendix II 
DISTRICT COURT OF THE UNITED STATES 
District of Massachusetts 
Equity No. 2541 
THE AMERICAN MERCURY, INC. 


Ne 
J. FRANK CHASE ET AL: 
O Pal nN LON: 


On motion to dismiss and motion for preliminary injunction. 
(14 April, 1926) 

MORTON, J. The questions before me arise on the defendants’ 
motion to dismiss the plaintiff's bill, and the plaintiff's motion for 
an injunction pendente lite. As the facts alleged in the bill are ac- 
cepted by the motion to dismiss, and those shown by the evidence 
on the motion for injunction are substantially the same, both ques- 
tions can conveniently be considered together. The material facts 
are not seriously in controversy. 

The defendant Chase and the Society of which he is secretary scru- 
tinize publications of various kinds, including books and magazines. 
If they believe that a book or article violates the law, they inform 
the large distributors of their opinion, with the intimation, express 
or implied, that if the book or magazine be sold or distributed prose- 
cution will follow. Where this warning is ignored, it is their custom 
to institute prosecutions. Such notice or warning is generally sent to 
one Tracy who is connected with the New England Newspaper Pub- 
lishing Co., a distributor of periodicals, with the understanding that 
he will pass it along to other persons in the distributing trade, who 
ate thus apprised that the article Cor book) is considered unlawful 
by said defendants, with the statement or implication that prosecu- 
tion will follow if it is sold or circulated. That course was followed 
as to the April number of THe American Mercury, and said de- 
fendants avow their intention to follow the same course as to future 
issues which seem to them objectionable. The effect of such notice 
is to interfere very seriously with the sale of the book or magazine 
objected to. 

The important question is whether this is a legal course of conduct. 
May an unofficial organization actuated by a sincere desire to benefit 
the public and to strengthen the administration of the law, carry out 
its purpose by threatening with criminal prosecution those who deal 
in magazines which it regards as illegal,—the effect being, as a prac- 
tical matter, to exclude such magazines from sale through ordinary 
channels and thereby to inflict loss upon their proprietors? 


The injury to the persons affected does not flow from any judgment 
of a Court or public body; it is caused by the defendants’ notice which 
tests on the defendants’ judgment. The result on the other person is 
the same whether that judgment be right or wrong, i.e. the sale of 
his magazine or book is seriously interfered with. Few dealers in any 
trade will buy goods after notice that they will be prosecuted if they 
re-sell them. Reputable dealers do not care to take such a risk even 
when they believe that prosecution would prove unfounded. The 
defendants know this and trade upon it. They secure their influence, 
not by voluntary acquiescence in their opinions by the trade in ques- 
tion, but by the coercion and intimidation of that trade through the 
fear of prosecution if the defendants’ views are disregarded. (See 
McMichael v. Atlanta Env. Co., 151 Ga. 776; Gompers v. Buck 
Stove & Range Co., 221 U. S. 418). 

In my judgment this is clearly illegal. The defendants have the 
right of every citizen to come to the Courts with complaints of 
crime. But they have no right to impose their opinions on the book 
and magazine trade by threats of prosecution if their views are not 
accepted. Pratt Food Co. v. Bird, 148 Mich. 631, 632, 634; Beck v. 
Protective Union 118 Mich. 497 (42 L. R. A. 407). Wilson v. Hay, 
232 Ill. 389. The facts that the defendants are actuated by no com- 
mercial motive and by no desire to injure the plaintiff do not enlarge 
their rights in this respect, though it may protect them under Mass. 
Gen. Laws, Chap. 265, sec. 25. 

Of course, the distributors have the right to take advice as to 
whether publications which they sell violate the law, and to act on 
such advice if they believe it to be sound. The defendants have the 
right to express their views as to the propriety or legality of a publi- 
cation. But the defendants have not the right to enforce their views 
by organized threats,—either open or covert,—to the distributing 
trade to prosecute persons who disagree with them. The principles 
of law involved,—which are interesting and might be much elabo- 
tated,—are analogous to those under which secondary boycotts are 
illegal, (see cases supra; also Burnham v. Dowd, 217 Mass. 351; 
Hotel & Railroad News Co. v. Clark, 243 Mass. 317), and perhaps 
rest ultimately on the reasons mentioned by Mr. Justice Holmes in 
Aikens v. Wisconsin, 195 U. S. 194 at 204, and the decisions there 
referred to. 

As to the April number of THz American Mercury, the injury, if 
any, to the plaintiff by the acts of the defendants Chase and the New 
England Watch & Ward Society had been completed before the 
present bill was filed. There is no threat by any of the defendants of 
further illegal acts as to that issue. This being so, no case for equit- 
able relief as to it is shown; and it is unnecessary at present to decide 
the question whether anything in it contravened Mass. Gen. Laws, 
Ghap..272;’sec.) 28: 

It follows that the motion to dismiss should be denied and that 
a temporaty injunction should issue in accordance with the second 
and third prayers of the bill. 


